Embrun Dairy Queen fined $40,000 for workplace Blizzard accident

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A Dairy Queen in Embrun has been fined $40,000 in connection with a workplace accident suffered by a 16-year-old employee whose hair was ensnarled by the spindle of the store’s Blizzard machine.

The teenager suffered a serious neck injury, was hospitalized for two weeks and was forced to take online courses for a semester while she recovered with the help of neck brace.

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In a recent decision, the Court of Appeal for Ontario varied the original sentence in the case and imposed a fine more than five times larger than the initial one issued by a justice of the peace under the Occupational Health and Safety Act (OHSA).

“This court has recognized that in order to achieve specific and general deterrence, the amount of a fine imposed on a corporate defendant must be sufficient that the fine will be ‘felt’ by the corporation and not merely a ‘slap on the wrist,’” the appeal court said.

Court heard that in September 2017, a high school student employed at the Embrun Dairy Queen was in the process of using the Blizzard machine when she was confused by something on the restaurant’s order board.

She took her foot off the Blizzard machine’s pedal, and turned to ask a co-worker a question when her long hair caught in its spindle, which had not stopped rotating.

She stepped towards the machine, but her foot accidentally tapped the pedal, powering the machine again and wrenching more of her hair around the spindle. Along with another employee, she then heard “a loud cracking sound” in her neck, court heard.

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The young employee was stuck in the machine for seven minutes until the shift leader managed to untangle her hair from the spindle.

The machine, used to blend ice cream, came with a plastic safety guard, court heard, but on the day of the accident, the protective guard had been removed by the shift leader in contravention of the OHSA. It was common practice, court heard, for some employees to remove the guard in order to save time, particularly during the store’s busiest periods.

The 16-year-old had once asked why some employees used the plastic guard and some didn’t, and was told by her boss that it was not required.

The employee received no specific training about how to safely operate the machine or about occupational health and safety awareness in general, the appeal court noted.

Dairy Queen had an employee handbook that addressed the machine guard system and other health and safety issues, but the employee did not receive a copy of it.

The injured employee took physiotherapy for a year-and-a-half, but continued to suffer long-term effects from the incident, including numbness, neck pain and headaches.

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The Embrun Dairy Queen was charged under the province’s health and safety act with failing to ensure the employee’s hair was suitably confined and with failing to ensure the machine’s spindle was guarded.

The initial trial lasted two days with a significant portion of evidence submitted through an agreed statement of facts. In August 2019, a justice of the peace found the Dairy Queen guilty of failing to ensure the machine was guarded.

The Crown sought a fine of $75,000, but the justice imposed a fine of $7,500.

The Crown appealed the sentence to the Ontario Court of Justice, where it was dismissed, and then to the Court of Appeal for Ontario.

The province’s highest court said the lower courts failed to properly consider the size and economic scope of the corporate defendant, an Ontario numbered company. The company operated seven Dairy Queen stores with the equivalent of 84 full-time employees.

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